SAN JOSE, California—"It's deja vu all over again," said the court reporter, when she walked into the packed courtroom of US District Judge Lucy Koh. The largest federal courtroom in San Jose was packed with reporters, observers, and lawyers who had come to watch the two "top dogs" of the smartphone world, Apple and Samsung, clash once more.

Like a few months earlier, television cameras were set up on the plaza outside the blocky concrete courthouse; court security was again holding people at the door, letting the suited masses in through the metal detectors a few folks at a time.

The most important post-trial hearing in the Apple v. Samsung patent lawsuit began promptly at 1:30p.m. today, and went on for almost four hours.

Judge Koh seemed skeptical about both Apple's desire to kick Samsung products off the market with an injunction, as well as the company's efforts to grab more than $500 million in additional damages. She also indicated she's inclined to invalidate at least one of the patents that led Apple to victory, saying that its claims might be too indefinite.

Koh barely brought up the most controversial post-trial issue—Samsung's accusations that the jury foreman lied his way on to the jury, and its request for a new trial because of that. "I think this issue has been fully briefed," she said.

But Samsung lawyer John Quinn brought up the issue just before the end of the hearing, and about 15 minutes of vigorous debate ensued. Still, Koh had a poker face, and there was no hint of how she might rule on the issue.

Apple demands a remedy for Samsung's illicit "leg up"

Apple's key goal post-trial is to get an injunction that would ban Samsung phones from the market.

There aren't many infringing phones left, though. During the hearing, Samsung lawyer Kathleen Sullivan said that out of the more than 20 Samsung phones accused at trial, only three of them—all different versions of the Galaxy S II—continue to be sold. Retailers have a stock of about 70,000 of those phones, said Sullivan.

The jury had found that Samsung phones infringed the trade dress for the iPhone 3G and iPhone 3GS, but Apple doesn't even make those phones anymore. That led Koh to an obvious question: "If you are not using the trade dress yourself, then how would Samsung's use harm Apple?" she asked.

"We have a strong sense of residual goodwill," said Apple lawyer Michael Jacobs. "The 3G and 3GS design is going to be linked to Apple for as far as the eye can see. When someone uses the 3G or 3GS in a movie or product placement, it's going to be recognized as an Apple phone—unless Samsung is allowed to dilute [our trade dress]."

Jacobs continued: "That velocity that Samsung gained in the market? That's happening today, tomorrow, and the next day. That's an onslaught. They got that leg up through the Galaxy line in 2010 and 2011, the diluting products. And that leg up? That 30 percent plus of the market they have, unless they somehow stumble badly? That continues."

Koh was still skeptical. "If it's off the market, where is the irreparable harm? It's gone."

In addition to an injunction, Apple is asking for more than $500 million in additional damages, saying that Samsung's infringement was willful.

"There has never been a case in which the evidence was so strong, and a specific product was targeted, and a specific product was copied," said Apple lawyer Harold McElhinny. "It was done by a party who had been told that the product was covered by thousands of patents, and did it in order to get an advantage."

But Koh spent much more time at the hearing asking questions about how Apple's damages might be lessened, not increased.

Apple's "tap to zoom" patent looking shaky

Koh started off the hearing by suggesting that she may find the '163 patent, Apple's patent on the iPhone "tap to zoom" feature, invalid because it's "indefinite"—in other words, too vague. It was the first issue to come up, and it immediately put Apple on the defensive.

"I find Samsung's argument on this patent persuasive," she said. "I want to know why the '163 patent is not indefinite."

Jacobs stepped up to the podium. "The legal standard is very high" to prove indefiniteness, he said. Samsung would have to show that the language of the '163 patent is "insolubly ambiguous."

Koh pressed ahead. "If I don't agree with you, what do I do with the 4G, the Replenish, and the Prevail, which were found to infringe the '163 patent as well as one or two [others]... Do we need another trial on damages?"

"I think the answer is, you don't even reach that unless you decide the verdict can't be sustained," said Jacobs.

Apple lawyer Harold McElhinny urged Koh to consider the jury's verdict as a whole, not piece by piece. Every phone that infringed the '163 patent was also found to infringe at least one other patent, he pointed out. "We were awarded less than half of what we asked for," said McElhinny. "We don't think this verdict number turns on any one patent or IP right."

"Wouldn't that be a windfall to Apple?" asked Koh. "If the jury found two or three patents were infringed, but it turns out only one or two are?"

No surprise, two Samsung lawyers, Kathleen Sullivan and Charles Verhoeven, practically jumped up to endorse the idea of a new damages trial. But Koh made clear that if there was to be a damages re-trial, it would only be for a few products. "Why do I need to re-try everything, if there aren't errors in awards for those prodcuts?" she asked.

Patent by patent, finding a way to lower damages

Whether or not the "tap to zoom" patent holds up, Koh asked questions suggesting she's likely to lower damages on a few other issues as well. She wasn't impressed by a jury calculation on the Samsung Prevail, in which the jury awarded 40 percent of Samsung's profits—despite the fact that the phone was found not to infringe any design patents.

For several other phones, including the Samsung S 4G, Showcase, Mesmerize, and Vibrant, the jury apparently calculated damages by awarding 40 percent of Samsung's profits on those phones, and adding in Apple's "lost profits" figures. (The amounts Apple experts believe Apple would have earned except for Samsung's patent violations.)

"Samsung's profits should be the sole remedy" in those cases, noted Koh. If she enforces that rule and kicks out Apple's lost profits, that would be another sharp dip in Apple's winnings.

For example, on the Fascinate, a reevaluation could result in Apple losing $47.7 million of its damage award—or about one-third of the total for that phone. On the Fascinate, the jury awarded a bit more than $143.5 million in damages. The calculation seems to be derived from taking 40 percent of Samsung's $239.5 million in profits on the phone, and adding the entire $47.7 million amount that Apple alleged in lost profits.

On one phone, the Prevail, Koh noted that the phone infringed only one utility patent—yet the jury had awarded 40 percent of Samsung's profits on the phone. "That damages award is really not authorized by law, for this product," said Koh.

Apple lawyer McElhinny, perhaps sensing that the damages discussion was not moving in the right direction, again urged Koh to consider the verdict as a whole.

"It's inappropriate to look at each one of these separate products and test whether it was correct," he said. "This reverse engineering exercise is dangerous and contrary to the law."

Koh asks: Where will it end?

"When is this case going to resolve?" asked Koh near the end of the hearing. "Is there an endpoint here? Are there some additional data points you're waiting on?

"I've said this all along, I think it's time for global peace," said Koh in one last plea for settlement. "I'm more than prepared to issue orders, you'll pick this up on appeal. But if there's any way this court can facilitate some type of resolution, I'd like to do that. It would be good for consumers, good for the industry, and I think it would be good for the parties."

The two companies still seem worlds apart, though. First, Apple's McElhinny stepped up to respond to Koh's plea.

For Samsung, these are dollars and cents decisions. They make the decision every day of how close they're going to get to the line. When the courts can catch up to them, and what happens when they do, is a mathematical calculation. They have placed their bet—successfully, so far. Look at market share. Eventually it will come to this court, and the power of this court, to establish a line. If the answer is, congratulations, you got a billion-dollar judgment—out of the 7 billion in revenues we got [from these phones]—that is the slap on the wrist.

If there's a new trial on damages, or no injunction—if you didn't see the same case that the jury saw—then I'm not sure. I'm not sure how we get a resolution.

Samsung's Verhoeven took the podium next.

As you know, our view is dramatically different. We see what Apple is doing. It's an intentional engagement of "thermonuclear war," throughout the world. It's an attempt to compete in the courthouse rather than the marketplace. [After the preliminary injunction] Apple went to our customers and misused the "colorably different" langauge, and told them they couldn't sell any of our phones. They're using any results they get through the courts to clobber our name and prevent us from competing in the marketplace fairly, on the merits.

We don't think they're trying to establish boundaries. They're trying to cloud things and use the courthouse to compete with us. From our perspective, Your Honor, we're willing to talk. The ball is in their court.

At hearing's end, Samsung slams a juror

It seemed like the issue of lead juror Velvin Hogan wouldn't even come up. And indeed, Koh never brought it up. But Samsung lawyer John Quinn did.

Quinn, who sparred with Koh more than any other attorney during the summer trial, loped up to the podium and looked down at his papers as he made his arguments. He argued for close to 10 minutes; Koh didn't make eye contact with him.

Quinn argued:

What do we know about the foreman in this case? Foreman Velvin Hogan. We know that he was dishonest when the court questioned him during jury selection. And we know from interviews that he very much wanted to be on this jury. He told reporters it was the high point of his career, the high point of his life except for the birth of his children. When he got on, he was very grateful.

He failed to give the key information about the suit he had had with Samsung's partner, Seagate.

He was dishonest. He was deliberately dishonest. We know that. It was an important issue. It was one year ago that this partnership between Samsung and Seagate was very widely publicized, picked up as headline news in newspapers around the world. Samsung became Seagate's largest shareholder, owning 12.5 percent.

He told the reporters what he did not tell this court. We have a case here that he should have been excused. We didn't have a chance to develop that. This was not a juror who was indifferent to jury service. He wanted to be on the jury.

Initially the jury was deadlocked, perhaps favoring Samsung. But overnight, he [Hogan] thought about it and had an "a-ha" moment.

Koh then asked her only question about Hogan. "He disclosed he worked for Seagate. Why didn't you ask a question during voir dire [jury selection] about his relationship with Seagate?"

"He led us to believe he had no litigation with Seagate," answered Quinn. "That would have been very important for us to know. We would have followed up on it, and likely made a case [to dismiss him] for cause. We were left with the impression there weren't any issues between him and Seagate, certainly no legal issues."

Hogan should be questioned about those issues in court, said Quinn, and the other jurors should be asked about Hogan's influence on the process. "We submit it would be an abuse of the court's discretion, at this point, not to hold a hearing."

Bill Lee, representing Apple, responded on the jury issue.

What Samsung has told you is that the jury foreman lied. Not true. They said that he was dishonest. Not true. They say he harbored a grudge for 19 years. That he knew that 11 months ago, Samsung had acquired 10 percent of Seagate. They say that it was his goal in life to get on this jury, and injure this shareholder, for something Seagate did 19 years ago. That doesn't make any sense.

We believe in the integrity of jury verdicts. The difference between now and July is that Samsung has been found by eight folks, who sat here for four weeks, to be an adjudicated infringer. They don't get the benefit of the doubt any longer, when they call Mr. Hogan a liar. He's not.

Apple's McElhinny stood up and added one last point.

"This was a hard fought case," he said. "Velvin Hogan was not involved in this case. When I read in the press that we had a juror—in a patent case—who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him.

He urged Koh to issue a ruling on the jury issue that would make clear to the public that going after a juror post-trial wasn't right.

"This motion was just an unprofessional motion, in a case in which no stone was left unturned," said McElhinny.

Koh didn't give a hint of how she might rule on that one. "I want to thank all of you for your patience today," she concluded. "I will try to get these orders out as fast as I can."

Dozens of laptops were unplugged in seconds. The packed courtroom, and the overflow room down the hall, cleared out almost immediately.

90 Reader Comments

If I was to serve as a juror on a high profile case like this, it'd probably be a high point of my life too.

Yes it would be interesting, but would you introduce your own evidence to the other Jury members by describing your own make believe rights as a patent holder?

Would you explain points of law regarding patents which are in direct conflict with the jury instructions the Judge provided?

I don't know but i'm certian that i'd provide my flavor of morality and oppinions that's unique to me. That's why I was called to serve and that's why the parts of the case chose me to serve. They examined me beforehand and they chose me because of my profile and my qualifocations. I answrred their questions truthfully.

If they regret that decicion afterwards is not really my problem. I guess all losing parties find some fault in their jury election process but that's a function if the process. That's how it supposed to work. If anything I'd be true peer in this case familiar to the details and process, perhaps nore fair than other jurors that might be persuaded by rethoric and public opponion. Who am I to deside? The parties chose me and I gave my honest judgement as instructed by the court.

Wow. Koh saying that the jury award is out-and-out "not legal" is not a good sign for Apple. They're going to be working hard to keep this case in the courts, let alone pull anything out of it and it has nothing to do with juror misconduct.

Not to mention Koh may simply invalidate some of their patents when this is all said and done.

I enjoy being right, but I'm not sure I enjoy being this right. Watching an American corporation get torn to shreds isn't exactly something I want.

American corporation? LMAO. When will people learn these guys have no loyalty to the US. They are international corporations, period. If Apple had any loyalty to the US, they would manufacture their goods in the US as much as possible, and take the hit on profits. But they dont and they wont. They use Foxxconn for everything, just like every other INTERNATIONAL corporation. The fact that people buy from them, or have loyalty to them them because they started in the US and happen to have their headquarters here, is silly. If they do not make their products in the US, then they are NOT a US corporation. Japanese auto makers that have manufacturing facilities in the US, are more US corporations that Apple is. Monsanto, is NOT a US corporation, Xe services is NOT a US corporation, and Apple is NOT a US corporation.

After reading the article and the comments so far, all I come away with is, "Wow, Ars' new comment voting system is seriously broken". It's clearly not being used to promote intelligent comments regardless of the position they take, but simply to reward anyone who agrees with a certain point of view and punish anyone who doesn't share it. How else can you explain that a comment which insinuates that Steve Jobs received a stolen liver transplant is at +9 at the moment?

I left Slashdot for Ars so I wouldn't have to deal with crap like this...

I may be wrong, but i think the point of Ars's system is much better than Slashdot. Ars's system :1) highlights editor picks (these are usually comments with further insight the article did not provide)2) highlights popular content as reader favs (this one seems to have a pretty high bar)3) hides trolling posts

I've seen +5/-25 = -20 posts hidden, but +35/-55 = -20 remain up with the font colour dimmed. The former is much more likely to be a trolling post and hidden, and the latter is more likely to be an unpopular opinion.

I wouldn't really take the net votes about everything else that doesn't fit the 3 categories too seriously. In these "hot" threads, a couple of troll comments are bound to slip in. It is still interesting as a barometer of commenter opinion though.

I strongly disagree with this. Jury duty is an obligation of citizenship (at least in the United States), and it's my strong belief that despite any personal inconvenience it may cause jury duty is something that should be desired. Your attitude, taken just a little bit further -- and I have heard this sentiment expressed by other people trying to get out of the jury pool while we waited to see if we were going to be called -- would leave only those who were too dumb to not be able to get out of jury duty deciding things. I know that if I was ever involved in a jury case and knew I was in the right I'd want an active, interested jury of my peers rather than a group of bored, disinterested, and possibly resentful people deciding my fate.

I know where you are coming from, and I can also agree with a lot of what you are saying. I am not saying that people on jury duty should hate the fact they are on jury duty; in a perfect world, they would be entirely neutral about the whole thing, preferably with no prior knowledge about anything to do with the case. Of course, the former is practically impossible since we are all human, and the average citizen is hardly a beacon of intelligence, and the former is unlikely, especially in a case like this where a company as high profile as Apple is involved.

Someone who considers jury duty a high point in their life is definitely not someone I would want on a jury, but likewise I agree with your point, and I wouldn't want the whole jury to not give the slightest shit, because then they are unlikely to pay any attention to the important parts, or pick up any kind of understanding of what they are being told. This is what I mean by my suggestion that a judge should have been the deciding factor in this the whole time. People are useless and can very rarely separate their personal opinions and feelings from their behaviour. Just look at this comments thread; if you randomly picked a "jury of your peers" from this pool, you could just as easily get an entirely Apple-sided jury as you could a Samsung one. It's all luck of the draw.

I know each side got a chance to grill the jury and kick off people they felt were unlikely to be fair, but at the end of the day no one has invented a true mind reading device yet, so it's quite easy for someone to just answer the questions intelligently and get on the jury duty they want to be on. Likewise the opposite, which is a lot more common I would expect, but I digress.

It boils down to people being human, and at least a judge is taught and trained to be as unnaturally logical as possible.

I may be wrong, but i think the point of Ars's system is much better than Slashdot. Ars's system :1) highlights editor picks (these are usually comments with further insight the article did not provide)2) highlights popular content as reader favs (this one seems to have a pretty high bar)3) hides trolling posts

I've seen +5/-25 = -20 posts hidden, but +35/-55 = -20 remain up with the font colour dimmed. The former is much more likely to be a trolling post and hidden, and the latter is more likely to be an unpopular opinion.

I wouldn't really take the net votes about everything else that doesn't fit the 3 categories too seriously. In these "hot" threads, a couple of troll comments are bound to slip in. It is still interesting as a barometer of commenter opinion though.

While Ars' system of voting is, credit where credit is due, much better than many others, the problem is the people are generally not. It doesn't matter how good a system is, if it's people voting, it isn't going to be used correctly.

I open all hidden comments just because it is impossible to know if the person actually posted an intelligent, well argued point or if they were just a troll. But I don't want to miss out on any possible valuable input, and there is no way to know, so I have to check them anyway, defeating the entire purpose of the system. Editor's Picks is excellent, the rest of it is just as frivolous as every other site.

I totally agree with Delta-Epsilon; instead of a voting system based on quality of discussion, we have a "I agree"/"I disagree" system, just like every other site.

EDIT:

Quote:

It is still interesting as a barometer of commenter opinion though.

It may be interesting, but how on Earth could it be considered a good thing? The whole point of this system is to encourage high quality, civilised discussion. As far as that goes, very little has changed, except people now feel like they have the power to punish opinions they disagree with, and elevate ones they don't.

Oh really? You mean the trade dress that, as Judge Koh says isn't even being used by Apple any more? Or the patents that Judge Koh has reason to call "indefinite"? That's what you're talking about? Perhaps you should spend more time reading the article and less time attacking the person making a post. All too often, it is the ignorant who label others. Especially in a discussion.

So you are saying because the lawsuit which started in April 2011, that might finish at the end of this year to be carried on through appeals for the next 2 years, that this should have no bearing today? It was definitive at the time of when the lawsuit was done. It's like having a car crash back in 2011, when the case finally gets to court 2 years later after 30 surgeries and a year and a half off work, they guy who hit him says....well you know you are all better now so no harm right? What is the remedy? Should companies be allowed to do this? Or should this be discouraged?

This is not a proper analogy and you are missing the whole point. Because the USPTO has an approve-first-ask-questions-later mentality, some of Apple's patents have been invalidated, or the judge has found that some of the patents aren't specific enough to NOT be copied. The problem is that Apple initially gets away with intentionally vague patents like Slide to Unlock and Rounded Corners. The USPTO has not been doing due diligence to make sure patents cover specific hardware or software mechanisms.

Apple is effectively getting away with patenting "a hinge". Well, what kind of hinge? What is it made of? Does it let a door just swing shut or can the door open both ways? Those and more specific questions should be answered in any good patent. The specific mechanisms, whether software or hardware in nature, in specific code, should be patented. And none of this "rubber banding" stuff. The same applies to that patent as well.

Quote:

Quote:

Yes. The iPhone cleverly borrows many ideas from other vendors. Let's see...could you initially customize ringtones or text tones since the inception of the device? Nope. But even my old Nokia flip phone had that capability. Could you send MMS messages? Only after iOS 3. Did the iPhone have a notification area? Not until iOS 4. But Android phones even had that pre-Froyo. Was the iPhone capable of OTA updates? Not until iOS 4. Even my LG Envy could do that. Could you restore from a backup OTA? Again, no. But Droids did. Does the iPhone have expandable storage? Nope! Does the iPhone tell you if you have a notification if the screen is off, after that notification has come in? Nope! Could the iPhone sync wirelessly? Not until iOS 4. Can the iPhone sync via Bluetooth? Nope! Did the first iPhone camera have a flash? Nope! Again, even my old Nokia phone did that. Could you edit photos, at all, using the default camera app? Nope! Not until what, iOS 4? Could you do anything on the lock screen except for unlocking the device or turning it off? Not until iOS 4. The list goes on. Clever? Hardly. The phone only has one button on the front! You have to go into the settings app to do just about anything! This is the epitome of not being clever.

As far as 4G, Apple did not put the time or energy into being an industry leader of the standard and now has some catching up to do. I get it. Apple is letting other companies do the innovating, that's fine. Then Apple should let those companies actually innovate and keep them out of the courtroom.

As far as Thunderbolt, I get it, thanks. It was more a point of how underused the standard was.

Edit: I think the true cleverness has always come from their PR people, their advertising. That they've convinced people that this idea is actually clever is amazing. How I picture the iPhone idea first arising in the boardroom:

Steve Jobs: Guys, we have to come up with something else. A bleeping music player? That's all you people come up with? *phone rings* What the eff! I told you guys to stop bringing your cell phones into the...that's it! You bleepers are on your cell phones all the time! Why not put a cell phone IN the iPod? We'll call it...iPhone!

I could go step by step through all the drivel you spew. Many of the things are standards, you know like 4g anyone can use that are patented that people pay money for, you know the ones that Samsung used without paying for. Oh wait....they used without permission....knowing used even when Apple objected...with emails to prove they intentionally did. Apple pays a fair bit to patenters to make the products they do. Samsung aped and refused to change and should this be lauded or discouraged? This is the discussion.

Again, you seem to be quick to judge but equally quick to miss the point. You simply stated that the iPhone was a clever product. I merely pointed out ways in which the iPhone was not clever. That is all. But, since you brought it up...

As many others have asked, what emails have you been reading? And with what rainbow-tinted glasses? You know, rainbow. As in the early 90s Apple logo.

Standards patents are utterly laughable and equally broken. The FRAND system is ugly. For any truly standards-essential patent, there should be a governing body for that standard, much like IEEE. All of the patents should be in control of the group that oversees that standard, with equal ownership split among any who wish to participate.

But getting back to your argument, Apple was able to legally rip off the work of Google and other companies because those companies don't make a habit of trying to patent intentionally vague patents like "Slide for Notification Area", etc.

The problem is that Apple initially gets away with intentionally vague patents like Slide to Unlock and Rounded Corners. The USPTO has not been doing due diligence to make sure patents cover specific hardware or software mechanisms.

The problem is that _it is possible_ to get away with intentionally vague patents. Doesn't matter who, so portraying Apple as the only company taking advantage of this situation is disingenuous. As has been pointed out before, Creative used their patent about ordering a list to demand payment - and they were successful. Nokia also enforced patents against Apple, and the two companies reached a licensing agreement.

infernallexicon wrote:

As far as 4G, Apple did not put the time or energy into being an industry leader of the standard and now has some catching up to do. I get it. Apple is letting other companies do the innovating, that's fine. Then Apple should let those companies actually innovate and keep them out of the courtroom.

Apple has shown a history of paying licenses where appropriate for technology it uses that others have invented. Apple has also publicly committed to only working on technologies where they feel they can make a difference - so along with many others I expect Apple to be purchasing the chips that implement 4G from Qualcomm or some other supplier. Last I heard, Apple was not trying to sue Qualcomm.

infernallexicon wrote:

As far as Thunderbolt, I get it, thanks. It was more a point of how underused the standard was.

Or perhaps that Thunderbolt has requirements that make it unsuited to the current balance of trade-offs made to develop the iPhone.

infernallexicon wrote:

But getting back to your argument, Apple was able to legally rip off the work of Google and other companies because those companies don't make a habit of trying to patent intentionally vague patents like "Slide for Notification Area", etc.

I would be _very_ surprised if Apple were the only company trying to register "intentionally vague" patents. All these companies hire IP lawyers, and if there's one thing lawyers do well it's find a way to game a system (and get paid for doing so).

The patent system is flawed, and everyone affected by it is trying to gain the most advantage possible. This is regrettable, especially for those who have no power to change the situation, but it is hardly unexpected.